P L D 1977 Karachi 582 (PLP)

ABDUL QADIR HALEPOTA, J.‑This constitutional petition is directed against the proceedings initiated against one Missal Khan (hereinafter referred to as the detenu) under the Sind Crime Control Act, 1975 (hereinafter referred to as the said Act). The proceeding under the said act started against the detenu on the basis of a report dated 25th August, 1975 filed by Sub‑Inspector, Mokhtiar Ahmad, Incharge of Drigh Colony Police Station, Karachi. In the report submitted against the detenu it was alleged that he was in the habit of taking charas out of Pakistan through Karachi in contravention of the prohibition and the restrictions imposed under the laws for the time being in force and that the detenu had the reputation that be habitually dealt in taking out charas illegally from Pakistan through Karachi. The report against the detenu besides containing allegations of a general nature made a mention of cases wherein the detenu was arrested and proceeded with under the provisions of section 43(3) of Abkari Act and section 9 of Opium Act and also under section 42(6)/49, Defence of Pakistan Rules. On the basis of this report, material particulars whereof, have been reproduced hereinabove, the learned Tribunal took cognizance of the matter and issued a warrant directing the Superintendent, Central Prison, Karachi to produce the detenu before him on 28‑8‑1975. The detenu was thus brought before the learned Tribunal on 28‑8‑1975 in persuance of the warrant issued under section 5 of the said Act. The detenu was detained in judicial custody under section 8(f) (b) of the said Act for a period of two months from the date of order during the conclusion of inquiry upon the report under section 14 of the said Act or whichever was earlier. Section 6 of the said Act requires that the warrant against the person reported shall be accompanied by a copy of the report and such report shall briefly state‑‑ (i) the acts with which the person complained against is charged ; (ii) the details of time and place of such acts ; (iii) general repute of person complained or such other allegation made against him. The question which requires consideration is whether the cases in which the detenu is said to have been involved have any nexus with the allegations made against him or bring him within scope of the said act. Both the cases under the Abkari Act and Opium Act were the result of a raid organized by Mohammad Ayaz Khan, Deputy Superintendent of Police, Air‑Port Sub‑Division, Karachi on 27‑6‑1975. The said officer received reliable information that the detenu had stored contraband charas and opium in huge quantity in his house at Natha Khan Goth, Karachi, On search conducted by the said Police Officer in presence of witnesses Tai Mohammed and Kbani Zaman 9 maunds of contraband charas duly packed in 5 bats and 9 seers of non‑excise opium were recovered from the possession of detenu. The charas and opium so recovered were sealed and seized at the spot and the detenu was arrested. F.

1. R. No‑129/75 under section 43(3). Abkari Act and F. I. R. No‑1311/75 under section 9(A), Opium Act were registered against the detenu at Police Station Drigh Corny. After investigation the detenu was sent up in those two cases. On the basis of the allegations which mainly formed basis of proceedings against the detenu under the Abqari Act and under Opium Act, the detenu was sent up under rule 42/49, Defence of Pakistan Rules. Now so far as the cases under the Abkari Act and the Opium Act against the detenu are concerned, they do not fall within clause (xvii) or any other clause of section 14 of the said Act. Clause (xvii), section 14 of the said Act sill be attracted only ff the Tribunal is satisfied as a result of an enquiry held under this Act that the person complained against is in the habit of or has reputation of habitually, entering into or departing from, or taking or bringing any goods out of or to Pakistan, in contravention of any prohibition or restriction under any law for the time being in force. Thus the perusal of this clause of section 14 of the said Act would show that a person complained against must be in the habit of or should have reputation of habitually entering into or departing from, or taking or bringing any goods out of or to Pakistan in contravention of any prohibition or restriction under any law for the time being in force. Now habit is customary method of doing a thing. It is a customary conduct deriving as a tendency arising from frequent repetition, When a person has repeatedly acted in a particular way at intervals whether regular or irregular for such length of time as that we can predicate with reasonable assurance that he will continue so to act, we may affirm that this is his habit. It would be incorrect to say that a man has a habit of any thing from a single act. The Legislature must be taken to have used the word 'habit' as meaning persistence in doing an act, a fact which is capable of proof by adducing evidence of commission of a number of similar acts. Habitually must therefore, be taken to mean repeatedly or persistently. Reputation is a sum total of the rumours and talks about a man accepted and believed by those who know him well, The evidence of reputation is made up partly of the belief of deponent sad partly of what he heard from others of their beliefs. Distinction between reputation and rumour is well marked, though it may be difficult to say generally where a rumour ends and reputation begins. How many instances build up a reputation and how long it takes for rumours to ripen into reputation can not be laid down by any hard and fast rule. A man's general reputation is the reputation which he bears in the place in which he lives. Reputation of man's character is the inference or estimate from the sum total of a man's action and qualities drawn or formed by persons who are acquainted with him or among whom he resides and with whom he is chiefly conversant or the circles in which he moves. It is the prevailing opinion formed by those, with whom he associates and who would have the best opportunity of knowing his habits and general behaviour. Character consists of the qualities which constitute the individual while reputation is the sum of opinions entertained concerning him. The former is interior; the latter external. The one is the substance and the other the shadow, character is what a person is, reputation is what people say of him. But notwithstanding this distinction which is everywhere agreed upon, the two words are sometimes used as synonymous. Now looking to what would in our view be the meaning and import of the word 'habit', 'habitually' and 'reputation' in clause (xvii) of section 14 of the said Act, we are clearly of the view that the information laid by the police before the Tribunal against the detenu does not come within clause (xvii) or any other clause of section 14 of the said Act. The detenu was being proceeded with for being in illegal possession of contraband chars: B and opium in the two cases which have arisen out of F. I. Rs. Nos, 129 and 130 of 1975. The case under section 42/49. D. P. R. is also based mainly on the allegations made in the two cases referred hereinabove. The fourth case also relates to the arrest of the detenu by the Police while he was carrying 160 tolas of charas intending to deliver it at Air Port to some Smuggler of Narcotics for sending the same out of Pakistan. In our opinion these two instances the one relating to the recovery of 9 maunds of charas and 9 seers of opium on 27‑6‑1975 and recovery of 160 tolas charas (for which no time and place is mentioned) do not bring the case of the detenu within any of the clauses of section 14 the said Act so as to brand him as a habitual Smuggler of Narcotics in and out of Pakistan. Out of six witnesses cited in the report under section 14 of the said Act Annexure 'B', the first three witnesses are private persons. Witnesses Taj Mohammad and Khani Zairian are the witnesses of search arid recovery in their presence of 9 maunds of contraband charas and 9 seers of opium. Apart from Raja Khan the third private person who is shown as a witness in the report under reference, there are no other persons from the place or community where the detenu resided so as to know his general reputation which he bore in the place in which he lived. The wording of section 14 of the said Act clearly seems to suggest ex clusion of the action under the said Act in respect of any solitary, unlawful or illegal act which has prudently been left to be dealt with under the ordinary law. Reference in this connection may also be invited to the preamble of the said Act and the object as set out therein which is to provide effective machinery of law to prevent the commission and repetition of crimes and to consolidate the law relating to anti social persons in the Province of Sind. In view of what we have stated above we hold that the proceedings taken against the detenu are without jurisdiction and lawful authority and consequently of no legal effect. We accordingly quash the proceedings pending against the detenu under the said Act. S. A. H. Proceedings quashed.